A Qualified Defense of Letting States Decide on Abortion

“In reality,” wrote former Reason Editor Virginia Postrel way back in 1989“overturning Roe would put the abortion question back where it belongs—in the arena.”

The Court didn’t overturn Roe that year, but a leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization has raised the possibility that, more than three decades later, it is now poised to do so.

By finding that “the Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” and by “returning”[ing] that authority to the people and their elected representatives,” the draft would allow New York to have extremely permissive laws on abortion while Mississippi has much more restrictive ones.

Many people on both sides of this issue understandably recoil from the idea of ​​what they see as a fundamental human right being subjected to a vote. (There’s more to life than mere democracy!) Yet on a practical level, if not on a moral one, there is a case in favor of devolving decision making on an issue that has split the country for decades.

Given the current state of public opinion on abortion, any top-down, one-size-fits-all policy is liable to exacerbate divisions and foment animosity. As Reason‘s Damon Root noted in a 2019 profileeven the late Supreme Court Justice (and feminist icon) Ruth Bader Ginsburg recognized as much:

Ginsburg argued that while the Texas statute at issue in Roe (which banned all abortions except where the life of the mother was at stake) certainly deserved to be struck down, the Court had “ventured too far” when it “called into question the criminal statutes of every state.” This “heavy-handed judicial intervention was difficult to justify,” she argued, “and appears to have provoked, not resolved, conflict.”

That conflict continues apace, and overturning Roe is not likely to end it. Activists on both sides of the issue will surely respond by pushing for federal legislation to protect either a woman’s right to procure an abortion or a fetus’s right not to be subjected to one. By insisting on a single answer for the whole nation, they’ll be ensuring that, regardless of which side is successful, many millions of people are dissatisfied with the outcome. True believers are not likely to be swayed by that consideration—and asa pro-life libertarian, I can see why.

If you, like me, are someone “who looks at an ultrasound and sees a baby, a person, a fully human life,” I wrote in 2015, “it’s extraordinarily hard to avoid the conclusion that abortion is an act of violence.” To the extent that the state has any legitimate functions at all, preventing the intentional destruction of innocent human beings must be at the top of the list. The existence of any jurisdiction, whether or not I live there, that fails in this fundamental task is a tragedy to those who come down where I do.

Nonetheless, the overwhelming majority of Americans are not where I am (and if you’re an abortion-rights maximalist, they’re not where you are, either). Most people in this country when polled say abortion should be legal under certain circumstances. What those circumstances are remains to be determined, but as Will Saletan explained at Slate a few years back, large numbers of even strongly pro-choice people “aren’t sold on abortion rights beyond the first trimester.”

The kinds of laws that would make the most sense to most people, in other words, would be somewhere between the two extremes. Negotiating the details of such a system is what the branch exists to do.

But there’s also a great deal of geographic variation when it comes to public opinion on where the relevant legal lines should be drawn. “In 2014, according to polling by the Pew Research Center, the share of adults who thought abortion should be legal in all or most cases ranged from 35 percent in West Virginia to 74 percent in Massachusetts,” explained Reason‘s Jacob Sullum in a 2021 magazine piece that remains invaluable as a broad overview of what might happen if Roe is overturned (though some of the statewide legal particulars are now out of date).

Those different states already approach abortion differently. If Roe goes away, none will be required to restrict abortion against the people’s will, but (unless or until federal legislation preempts them) all will gain the freedom to draft laws that hew more closely to their selectors’ values. And individuals who care to do so will still be able to offer direct assistance to pregnant women—either to help them travel out of a jurisdiction where abortion access is restricted, or to support them in a choice to keep their babies in spite of a legal option to abort.

Activist types won’t be satisfied, but fewer Americans will be forced to live under a legal regime, imposed from on high, that is contrary to their convictions on a matter of life and death. At an already precariously toxic political moment, there is something to be said for that.

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